Social media fears about lack of coverage for protest injuries may be overblown

Thousands of protesters thronged the streets in recent days to express their anger over the killing of an African American man, George Floyd, in police custody in Minneapolis. The mostly peaceful rallies have turned violent at times, with police using batons, tear gas and rubber bullets that caused serious injuries.

That led to online social media postings that health plans might deny coverage for medical treatment of injured protesters, some suggesting it might be better for protesters not to tell providers how they got hurt.

Plans do sometimes have exclusions for coverage related to "illegal acts" that could leave people on the hook for at least part of their medical costs. But health policy experts said it's unclear how common these clauses are or when they're used to deny coverage.

In addition, even if a plan denies those claims, protesters would generally have strong grounds for appeal, the experts said. Success would hinge on the policy language and the circumstances around the protesters' involvement.

"There's a strong argument to be made that someone was participating in a civil protest, and that's not illegal," said Karen Pollitz, a senior fellow at KFF (the Kaiser Family Foundation). (KHN is an editorially independent program of the foundation.)

America's Health Insurance Plans, a trade group, played down the concerns that have been mentioned on social media. "We are not aware of any blanket exclusions that would deny coverage for injuries or illnesses received during a protest," said David Allen, a spokesperson for the group.

In general, health plans have broad leeway to exclude certain things from coverage, said Sabrina Corlette, a research professor at Georgetown University's Center on Health Insurance Reforms.

For example, plans may note that they won't cover injuries from certain dangerous activities, such as skydiving or bungee jumping. Some states allow insurers to refuse to pay claims related to drug or alcohol use.

Likewise, people who commit felonies or other illegal acts might have their claims denied. And if a lawful protest turned violent, insurers might consider it an illegal riot and deny medical coverage.

But that exclusion has to be part of the insurance contract, not something the company decides after receiving a claim.

"These exclusions need to be written down in your policy document," Corlette said. "The plan description is supposed to outline all the things it won't cover, in very specific language."

Most people don't read their policy's fine print, but the document is generally available from insurers or employers.

Exclusion examples are not that hard to find. A sample benefits handbook for Florida Blue large group policies, for instance, specifically excludes treatment for injuries that result from "your participation in, or commission of, any act punishable by law as a misdemeanor or felony, or which constitutes riot, or rebellion." A Cigna plan says it wouldn't pay for care for "a Member participating in an insurrection, rebellion, or riot."

All Florida Blue plans incorporate that exclusion language, said spokesperson Ilyssa Drumm. The company is not aware of any instances in which it has denied coverage for injuries specifically related to a riot or protest, she said.

"[We] would not apply this to someone who was injured when peacefully protesting and the actions of others led to their injury," Drumm said.

Cigna did not reply to a request for comment.

It's unclear the extent to which employers and insurers exclude coverage for injuries from dangerous or illegal activities or reject related claims, experts said. Researchers in at least one state have looked into this. A 2016 analysis by the Connecticut General Assembly Office of Legislative Research said the state insurance department found no coverage exclusions related to illegal acts among major medical or HMO forms filed by major carriers in the state.

The analysis noted that the National Conference of State Legislatures says that at least 18 states have laws related to coverage exclusions for "illegal acts." Some prohibit such exclusions, while others allow them, the Connecticut study said. NCSL could not be reached to confirm the number. (State laws apply to state-regulated insurance policies, but federal laws regulate employer plans that are self-funded, meaning the company pays employee claims itself rather than buying insurance for that purpose.)

If a health plan did have an exclusion for medical services related to rioting, for example, determining how that applied to an individual policyholder's claims would depend on specific details. How does the policy define "riot"? What does it mean to "participate" in one? Does the policy differentiate between "riot" and "protest"? Did the injured policyholder plan to attend a peaceful protest that subsequently got out of hand?

"There are probably a lot of fact-based questions that would need to be answered," said Corlette.

Sometimes language in a policy may be very broad, allowing insurers to deny coverage for injuries sustained in the "commission of a crime," for example, said Phyllis Borzi, a former assistant secretary of Labor who headed the Employee Benefits Security Administration and is now a consultant.

That kind of language could trip up protesters who have been arrested for offenses such as violating curfew or failing to leave the street when ordered to do so by police.

"These exclusions are designed to make sure that the plan isn't going to be responsible if you go off and do things that are unwise and illegal and as a result you get injured," Borzi said. "If you do get arrested, it's just another little indicia of the fact that maybe it wasn't just a benign activity on your part."

Lying about how an injury occurred probably isn't a good idea, said Borzi.

"You don't have to volunteer the information, but if they ask you and you don't tell them or lie, they could not just exclude the coverage but prosecute you under an insurance fraud argument," she said.

Medicaid, the federal-state health program for low-income people, doesn't typically have these types of provisions, said Sara Rosenbaum, professor of health law and policy at George Washington University.

Medicare, the insurance program for people age 65 and older and people with disabilities, doesn't have these exclusions either.

The sight of crowds of protesters giving full-throated, generally unmasked, voice to their grievances has raised the specter of a resurgence of COVID-19. But insurers would be unlikely to deny coverage for treatment of the virus if someone gets sick after going to a rally, experts say.

"The employer would have to prove that the protest was the cause" of the infection, said Borzi, and given how widespread the coronavirus is, that would be practically impossible.